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Whitenhill v. Kaiser Permanente6/26/1997
ceased.
I
Plaintiffs first contend that the trial court erred in interpreting the Act to preclude parents from bringing a wrongful death action as heirs if a deceased's spouse elects not to bring the action. We agree with the court's ruling.
A wrongful death claim may be maintained in Colorado only as provided in the Act. Because the Act is in derogation of common law, it has been strictly construed. Ablin v. Richard O'Brien Plastering Co., 885 P.2d 289 (Colo. App. 1994).
Section 13-21-201(1)(a), C.R.S. (1996 Cum. Supp.) defines persons entitled to sue to recover damages for a wrongful death as follows:
In the first year after such death:
(I) By the spouse of the deceased;
(II) Upon the written election of the spouse, by the spouse and the heir or heirs of the deceased;
(III) Upon the written election of the spouse, by the heir or heirs of the deceased;
or
(IV) If there is no spouse, by the heir or heirs of the deceased.
However, the term "heirs" under the Act has been consistently construed to refer only to lineal descendants of the deceased. See Hindry v. Holt, 24 Colo. 464, 51 P. 1002 (1897); Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974). As a result, the term does not include parents of a deceased. McGill v. General Motors Corp., 174 Colo. 388, 484 P.2d 790 (1971); Potter v. Thieman, 770 P.2d 1348 (Colo. App. 1989).
Only § 13-21-201(1)(c), C.R.S. (1996 Cum. Supp.) of the Act expressly provides standing for parents as follows:
If the deceased is an unmarried minor without descendants or an unmarried adult without descendants, by the father or mother who may join in the suit, and each shall have an equal interest in the judgment; or if either of them is dead, then by the surviving parent.
A
In support of their contention, plaintiffs first maintain that parents historically have been excluded from pursuing claims as heirs because they suffered emotional rather than pecuniary loss. Hence, any damage award to the parents was inconsistent with the intent of the Act to provide compensation to those persons dependent upon the deceased for financial support. Plaintiffs note, however, that in § 13-21-203.5, C.R.S. (1996 Cum. Supp.), adopted in 1988, recovery is authorized for a "solatium" amount in addition to economic damages and in lieu of noneconomic damages. As a result, plaintiffs argue that the General Assembly must have intended for parents to be included as heirs. This argument is unpersuasive.
In 1988, the provisions of § 13-12-201(1) were clarified relative to the preferred right of a spouse to file a wrongful death action during the first year.
The 1989 amendments created a right to recover noneconomic damages in addition to pecuniary damages, but did not change or enlarge the class of persons who may bring an action for wrongful death. Ablin v. Richard O'Brien Plastering Co., supra.
In connection with these amendments, we must presume that the General Assembly was aware of the prior construction of "heir or heirs" in adopting both modifications. See Tompkins v. DeLeon, 197 Colo. 569, 595 P.2d 242 (1979). And, although the General Assembly could have modified those terms to include parents, it did not do so. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985)(court cannot read nonexistent provisions into statute).
B
As additional support for their contention, plaintiffs also rely upon Ablin v. Richard O'Brien Plastering Co., supra, in which the court noted, in dictum, that the Act had been amended to confer st
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